Respect in Mediation
A Counter to Disrespect in the Workplace

Dispute Resolution JournalNovember 2008-January 2009

espect is a universal need. Unfortunately,
its opposite, disrespect, can be found in
many places of employment, from corporate
board rooms to assembly lines. Work
plays a central role in the lives of Americans;
much of our sense of identity and worth, our
self-respect, is determined by how well we are
doing at work and how our co-workers and
bosses perceive us. Yet, never before in recent
years has the job environment been less hospitable
to employees. Global competition, deunionization,
outsourcing, downsizing, and the
continuous march of technology all make for
disposable employees. The imperatives of the
bottom line and shareholder value have turned
the workplace into an insecure pressure cooker.
Tensions are exacerbated when employees
have to work with colleagues who fail to treat
them with respect.

No one can quantify the degree to which disrespect
in the workplace has contributed to
employment litigation. Although the employer
may be justified at times in taking adverse action
against the employee, doing so in a manner that
the latter perceives as disrespectful needlessly
adds insult to injury. Demeaning exit protocols—
for example, parading discharged employees out
of the office, in full view of their erstwhile colleagues,
flanked by security personnel—often
produce anger sufficient to fuel a lawsuit. From
the employee’s point of view, litigation may be
the only means to get the respect
he feels is his due. This
can be costlier to the employer
than any sabotage by departing
employees.

Sadly, in most cases, lawsuits
represent a “lose-lose”
proposition for both sides.
Employers spend huge sums
on attorneys and endure business
disruption. Employees
avoid having to pay for legal
representation through contingent-
fee arrangements (if
they are fortunate enough to
find a lawyer willing to represent
them), but they suffer in
more intangible ways. They
are usually completely unprepared
to endure the emotionally
draining litigation process,
and they have no concept of
how long it can drag on. Even
when forewarned by their
lawyers, they may find it hard
to imagine the stress involved in providing deposition
and trial testimony and in having their
behavior scrutinized and attacked by opposing
counsel.

If after discovery the judge dismisses the complaint,
the employee feels disrespected again, this
time by the very institution on which he relied
for vindication.

Mediation in Lieu of Litigation

While there is no vaccine against the virus of
disrespect rampant in many workplaces, particularly
in the recessionary times we are now enduring,
there is an alternative to the grim litigation
scenario — mediation. When held early (ideally,
before litigation commences), mediation serves to
prevent the phenomenon of “marrying” one’s
pain, which can lead an aggrieved employee to
devote huge amounts of time and energy to chasing
an elusive and illusory justice. Although no panacea for the multiple ills of the legal system, mediation, even when unsuccessful, fulfills the
basic duty of doctors — applicable also to lawyers
and neutrals — to “do no harm.” When successful,
however, mediation affords not only a resolution
of a specific dispute on the terms the parties have
agreed to and formalized in their settlement document,
it also improves the distressed employee’s
psychological and spiritual state of mind.

Even mediation late in the day may yield psychological
healing; in fact, this may be the real
relief for which the aggrieved party is looking. I
observed this reaction in a
mediation involving an embittered
ex-employee who had
been pressing his claim for 10
frustrating years. When I asked
my client to state his goal for
the mediation, he replied: “To
regain my emotional wholeness.”
He reluctantly settled
for a sum he viewed as inadequate,
but he did express gratitude
that the mediation session
had brought “a human side to
a bureaucratic and cold [litigation]
proceeding.”

What comprises the “humanness”
of mediation? Fundamentally,
it is respect for
the individuals involved. That
is what renders it uniquely
effective in addressing grievances
rooted in feelings of disrespect.

Achieving a voluntary settlement
of disputed claims is
mediation’s immediate purpose, yet that aim
should not be divorced from its other purposes—
which, according to the “Model Standards of
Conduct for Mediators,” include promoting procedural
fairness, self-determination, and mutual
respect among the participants. Indeed, procedural
fairness and self-determination are largely
what make mediation a respectful process. Socalled
“transformative mediation” explicitly embraces
the norm of respect by focusing less on
reaching a settlement than on empowering the
parties to rely on their own capacity to solve
problems, and helping them to “recognize” each
other’s concerns. “Recognition” implies empathy
and acknowledgment, two of respect’s major
attributes, along with patience, courtesy, attention,
and regard for the individual’s inherent dignity
as a person. While other schools of mediation
practice may place greater emphasis on pragmatic
ends (like resolution of the controversy), none worthy of the name “mediation” neglects
the human side of the enterprise.

This orientation differs starkly from litigation’s.
For one thing, litigation is like a rear-view
mirror—it looks backward. From that perspective,
it seeks to assess responsibility for past
injuries. Communication between the litigants is
indirect, conducted only through their attorneys;
the parties never speak to each other. Each side’s
view of the facts and the law is presented to a
judge or jury, and that presentation is burdened
by the inhibitions of public speech, evidentiary
constraints, and legal rules.

If nothing else, litigation is “bureaucratic and
cold” (in the words of my former client) and, as
an adversarial proceeding, it encourages mutual
demonization and intransigence. The fact that
litigation procedures are designed to be “fair”
does nothing to alter the fact that the process
itself tends to ignore human values, such as selfrespect
and respect for others. The people whose
interests are at stake cede almost all decisionmaking
power to third parties; the litigants become,
in effect, mere bystanders, rather than
human actors with feelings and thoughts of their
own.

By contrast, mediation focuses on making matters
right for the future. The parties speak privately
in their own voice to a mediator, who
moderates or facilitates the negotiations, making
no decisions herself. The parties can vent their
emotions to the mediator in private caucuses.
(They can also do so in a joint session with the
other party, but should be coached to refrain
from attacking the adversary—a tactic that is unlikely
to encourage accommodation.) Mediation
puts an aggrieved employee on a par with the
employer. The mediator helps the parties understand
their own interests as well as others’ and
works with both sides to develop potential solutions
to their problems.

Because mediation is voluntary, the parties
cannot be forced to settle. They alone determine
the outcome of the dispute and if they decide to
put it behind them, they may agree to any terms
not barred by law. Sometimes the parties are able
to mend their broken relationship. More often,
however, they may come to reinterpret their history
in a way that lets good memories prevail
over bad ones.

By emphasizing party autonomy and focusing
on the litigants’ interests and possible outcomes
benefiting both of them, mediation enhances
their self-esteem and fosters in each a more
respectful attitude toward the other person. The
process is, in a word, humane.

The Mediator’s Role in Eliciting Respectful
Behavior

At the very least, the mediator should model
courtesy in her dealings with the participants.
Yet, to create a truly respectful environment, a
mediator has to do more than just be polite and
hope that the parties and counsel will emulate
her example. Rather, at every stage of the proceeding,
she must proactively further the participants’
respect for others: i.e., their seeing and
treating people according to the Kantian ideal, as
ends not means—as worthy of regard solely
because of shared humanity. Having good manners
is the ornament but hardly the essence of
this concept. The mediator should lay the
groundwork for respectful behavior at the mediation
in pre-mediation conversations with counsel
and, at times, the parties. The mediator must also
demonstrate respect for the parties and the
process by thoroughly preparing for the mediation
session. Such advance work signifies a serious
purpose and commitment.

Showing respect in mediation has a utilitarian
purpose: it can smooth the path toward problem
solving. But apart from that function, its intrinsic
value makes it worthy of pursuit.

Pre-Mediation Conferences

Many mediators prefer to hold a pre-mediation
conference call with the attorneys for both
sides to discuss the case. However, it can be more
effective to speak to the lawyers separately.
Private conversations encourage candor and
make it easier to plan for a respectful session. For
one thing, the mediator can probe for particular
sensitivities on the part of each lawyer and client
that might call for special attention. For example,
what are the employee’s feelings about his former
supervisor? How did the employer’s representative
react to the employee’s attorney “beating
him up” at his deposition? Has either side not
cooperated in discovery, or been verbally abusive,
or failed to return counsel’s phone calls, or
engaged in other conduct that could lead an
adversary to harbor resentment? (Although
lawyers should have the professional detachment
to set aside such irritants in settlement attempts,
some cannot.)

Prior knowledge that one participant feels hostility
toward another alerts the mediator to the
need to restore respect at the mediation. The
only way to uncover these kinds of sore spots is
to inquire, and ordinarily this is best done in private,
separate conversations with the parties’
lawyers.

Before every mediation session, the mediator
must discuss with counsel who should attend; each side has to have a person with full settlement
authority present. However, this is also the
opportune time for the mediator to stress that
those who attend the mediation should display
mutual respect. It is an equally good time to find
out who should not attend. I usually suggest to
the company’s attorney that his client show
respectful attention to the employee by sending a
high-level corporate officer to the session. I usually
ask the employee’s lawyer if there is anybody
from the company that his client does, or does
not, want there. Sometimes the employer insists
on bringing an individual whose presence would
greatly upset the worker. There are at least two
possible ways the mediator could handle this
problem while taking the employee’s feelings
into account. One is to forego holding a joint session.
The other is to explore how the employee
would feel if this person attends the mediation but agrees not to speak at the joint session.

Employees may feel better when they are
accompanied to the mediation by an individual
who will provide emotional support—typically, a
friend or family member. It is important for the
mediator to ask if the employee wants to have
such a person attend the session. This type of
deference to the employee’s emotional needs signals
thoughtfulness, one of respect’s many faces.
It also serves a practical purpose since without
that family member or friend’s input or assent,
the employee is likely to refuse to settle. For precisely
this reason I have held mediations that
included formal or informal spouses, parents, siblings,
children and other invitees. In my experience,
their presence usually helps, not hurts, the
process.

Most important, pre-mediation conversations
permit the mediator to coach the attorneys on
the appropriate tone for introductory remarks.
However, veteran attorneys do not like to be told
how to do things. So in order to avoid seeming to
patronize them, the mediator can say that she
always discusses opening statements the first time
she works with a lawyer.

Experienced attorneys generally know that
mediation is not the forum in which to try to prove the merits of their client’s position—let
alone disparage the complaining party. Nevertheless,
some lawyers find it extremely hard to
resist the temptation to do so. Thus, during their
opening statements they may use loaded terms,
like “extortion” and “nuisance value,” to characterize
the plaintiff’s case. Less experienced lawyers
may use aggressive language to mask insecurity
or impress a partner or client, even though
doing this can doom the mediation to failure. To
head off such unproductive behavior, which
would only confirm the employee’s fears that the
employer will demean him again, mediators
ought to advise refraining from “red flag” language.
If counsel takes issue with this recommendation
on the ground that his client expects a
“forceful” introduction, I emphasize the pragmatic
value of showing respect and keeping the
atmosphere conducive to settlement.

I also discourage counsel from making run-on
remarks because prolixity can be regarded as talking
“at,” not “to,” a person. (I learned this to my
sorrow after having failed to curtail a one-hour
defense jeremiad.)

Coaching lawyers on their opening statements
can include suggesting that they find something
positive to say about the other party. For instance,
the employer’s attorney could say to an
employee who was discharged for lateness: “No
one has questioned your technical skill.”
Moreover, the mediator might mention that
counsel will rarely go wrong by distancing himself
from critical comments, stressing that he is
simply relaying what others have told him, what
the record reveals, etc. Counsel could also “bookend”
his comments with conciliatory words like:
“Notwithstanding the differences in the parties’
positions, we are here to negotiate in good faith.”

In addition, the mediator can recommend to
junior litigators, who often adopt a one-size-fitsall
approach, that they tailor their opening statements
to the case at hand. For example, I once
counseled a young lawyer representing the employer
to express empathy for the elderly female
factory worker who had been laid off after 34
years—three months shy of the level of seniority needed to preserve her job. I generally find that
inexperienced lawyers welcome advice on how to
show respect for the other side.

Sometimes a represented party may initiate
contact with a mediator who is an attorney; ordinarily,
it is the employee who does this. Ethical
rules governing lawyer conduct permit the mediator
to have the ex parte contact with the worker
because the mediator is acting not as his counsel,
but rather as a neutral facilitator. Nonetheless, as
a courtesy, the mediator should inform the employee’s
counsel of the communication and her
intent to respond. A good way to do so is to acknowledge
the employee’s concerns politely and
empathetically without discussing the substance
of the case. For instance, when I received a long,
impassioned letter from a deaf employee, arguing
the merits of her claim of disability bias, I wrote
her a brief thank-you note stating that we would
take up her issues at our session and asking what
accommodations she would require in order to
participate fully during the meeting. She responded
gratefully with specific suggestions, contrasting
my inquiry favorably with the company’s
perceived neglect of her needs. The restorative
process had begun. This anecdote demonstrates
that postponing the substantive conversation
until the mediation itself does not imply any sort
of rejection.

The Joint Session

The joint session is usually the only occasion
at which all participants come together. It is the
forum in which the mediator must model the
respect that she desires the others to emulate. The
following techniques may help her to achieve this
end.

The mediator always makes an opening statement
at the joint session, explaining the process
and her role. To avoid seeming to lecture the
participants about good behavior, the mediator
can try to “educate” them by example instead of
words. For instance, she can turn off her cell
phone in full view of everybody to tell everyone
else tacitly—and tactfully—to do the same.

The mediator should look directly at her auditors
as she talks, shifting her gaze from one to
another to show attentive concern toward all.
Common sense naturally dictates certain exceptions
to this practice. For example, if a party to
the proceeding is deaf but can lip read, the mediator
should face her at all times when speaking,
and ask others to do likewise.

If the mediator has reason to anticipate that a
participant may become hostile, she can solicit
agreement beforehand to observe a “rule of respect”:
not raising voices, interrupting, or making unduly personal comments. Should anyone later
break this promise, the mediator can invoke the
rule to put the miscreant back on track.

While explaining the mediation process, the
mediator needs to discuss the private caucus and,
in particular, the technique of reality testing. By
fully previewing this sensitive aspect of mediation,
she can avoid giving unwitting offense to
the parties, who may feel that they are being attacked.
To emphasize my impartiality, I often
say: “I reality test both sides. I am an ‘equal opportunity
pest!’” I also stress that I am not trying
to substitute my judgment for theirs; rather, I am
acting out of deference to their autonomy, to
help them to reach their own decisions with the
best information and input available. Further, I
remind them that mediation, as opposed to litigation,
puts them in control, not the mediator or
the lawyers. In these ways, I aim from the start to
recognize and empower the parties.

During the parties’ opening statements, the
mediator should conduct herself as a model of
courtesy, setting aside all papers (except for her
notepad) and turning her chair, eyes and attention
toward the speaker. Most others in the room
will follow her lead, but sometimes parties and
counsel will whisper to each other, or root through
files, or even roll their eyes or smirk. There are
limits to what a mediator can do to quell this kind
of behavior because a neutral is not a cop. Her role
is more an exemplar’s than an enforcer’s, and she
must take care to appear impartial. If someone
objects to the rudeness, however, she might remind
everyone of the need for respect by saying: “We
are here to listen to each other.”

Rarely, more pointed intervention may be
called for at the joint session. If contemptuous,
insulting or obscene language is used by a participant,
the mediator has to weigh the benefit of
quickly defusing an ugly moment against the risk
of embarrassing someone and perhaps being
viewed as less than neutral. On the assumption
that counsel has thicker skin than his client and
higher duties, the mediator might be readier to
squelch offensive conduct by a lawyer. For example,
in one instance in which defense counsel
called the plaintiff, a discharged employee, a liar
for allegedly misrepresenting that he had a Ph.D
degree, I felt I had to remind counsel about the
accurate “ABD” (all but degree) qualifier on the
employee’s resume. But the mediator should never
tolerate gutter speech or personal attacks because
they are likely to destroy a respectful environment
for good (as well as the innocent party’s
trust in the mediator). If the offender seems genuinely
contrite after the mediator intervenes, it
may be possible to elicit an apology from him. This may restore the injured person’s self-esteem
as well as a positive atmosphere.

Following the joint session, the mediator typically
engages in “shuttle diplomacy,” meeting
privately with each side as often as necessary.
During these caucuses, the mediator maintains a
respectful climate by using a vital mediation technique—
active listening. A good mediator will
patiently hear what the caucusing
party has to say, providing
both verbal and nonverbal
feedback. Other techniques
that demonstrate respect
are reframing negative statements
into constructive communications,
probing positions
to uncover the interests of the
parties, and listening with “the
third ear” so as to glean subtle
clues to the speakers’ needs and
sensitivities. Through these
methods the mediator demonstrates
that she takes the parties’
concerns seriously and is
looking for ways that each one
can move toward finding possible
solutions to the dispute.

At the start of the first caucus
with each side, the mediator
can stimulate candid discussion
and trust by requesting
the caucusing party to talk
a bit about himself. This approach shows that the
mediator sees the litigants as individuals with
their own agendas—not simply as the personification
of a problem to be “acted on” by the mediator.

During the initial caucuses, the mediator
should also inquire if anyone who has not yet
spoken wants to do so and if anyone else wishes
to add anything to what has been said previously.
These questions evince respect and have the utilitarian
goals of eliciting additional potentially useful
information as well as building rapport and
confidence in the mediator.

Although each matter is unique, there are certain
recurring situations in which the mediator
ought to try to communicate respect, or eliminate
perceptions of disrespect. One situation is
when an adversary insults a party in the opening
session. If, for whatever reason, the mediator
does not address the incident then, she should
bring it up in caucus, even if the innocent party
does not raise it, because the victim could be
obsessing about it silently. I dealt with this problem
in a case I mediated between a 65-year-old
worker and the employer who terminated him. The plaintiff had found a new job in his area
(sales) four months after being discharged; this
was record time, given his age. The young attorney
who gave the employer’s opening statement
castigated the employee for taking a position that
paid less than his former salary—thus, ostensibly,
failing to properly mitigate his damages. The
plaintiff and his wife visibly flinched at this remark.
In their eyes, the company
had not only tossed the
plaintiff away at the end of his
career; it had also rubbed salt
in his wounds by dismissing
his efforts to put his life back
in order. I said nothing about
the matter in the joint session,
but in the private caucus I immediately
expressed regret for
the lawyer’s comment and
noted that, in her youthful
zeal, she may have misrepresented
the defendant’s stance
on mitigation.

My statement was intended
to deflect the couple’s resentment
from the employer onto
the lawyer and to lessen that
resentment by attributing her
misstep to poor judgment due
to inexperience. The point I
would like to emphasize is that
deep affronts to a party’s pride
have to be addressed somehow, although there may
be alternative ways of doing so.

Respect and Reactive Devaluation

A less rational but common source of negative
emotions, which the mediator must confront, is
the bargaining process itself. When a high demand
predictably yields a low-ball counter, unsophisticated
plaintiffs may feel personally disrespected.
(I distinguish this genuine reaction from
routine posturing by lawyers who claim to find an
offer “insulting.”) In such circumstances, mediators
can use a number of strategies.

First, in the initial caucus, the mediator, together
with the plaintiff’s counsel, ought to
explain the back-and-forth negotiation in which
the parties will be engaging. In addition, when
the plaintiff expresses dislike of haggling in general
or feels belittled by a small offer, the mediator
could commiserate by saying: “Many people
would feel that way.” The mediator could also
distinguish the defendant from the bargaining
process by pointing out that negotiating ploys say
as much about the negotiator’s personal style as
about the employee or his lawsuit. Further, the mediator should attempt to defuse the view that
bargaining inherently connotes disrespect by the
fashion in which she shapes its progression. One
well-known mediation technique that can forestall
so-called reactive devaluation (the tendency
to consider a suggestion worthless on account of
its source) is to make it seem that the proposal
came from the mediator, not the adversary. Doing
this makes good sense if the overture involves
an especially sensitive issue like the employer’s
wish to “buy out” a current employee. The mediator
should always float that suggestion herself to
avoid the employee’s seeing it as the latest sign of
contempt: “Now they’re trying to push me out!”

Unusual cases may demand unusual, idiosyncratic
solutions. I mediated a case between an
African-American woman and the employer who
terminated her employment as an office cleaner.
The plaintiff was wholly inexperienced in business
manners and mores. She was incensed when
the employer made an opening four-figure offer,
and accused the company of treating her “like a
nigger.” My explanation of bargaining tactics
made no dent at all in her anger. I finally conceived
the idea of having the employer authorize
me to deliver a “statement of respect” on its
behalf, clarifying that the proffered amount was
based solely on its assessment of the legal merits
of her lawsuit rather than any lack of esteem for
her as a person. As artificial as it may sound, this
tactic worked. The statement mollified her considerably,
restoring her sense of self-respect.

Thus, when conventional approaches fail to
reintroduce respect into the mediation, the mediator
should act on her educated instincts and try
to propose creative solutions if doing nothing
would threaten to worsen existing relations.

Respect and Inflated Expectations

It is often necessary for the mediator to deflate
the parties’ overly optimistic expectations. Doing
so, however, can subvert the aim of restoring
self-esteem. Yet to dwell on the positive alone
would undermine party autonomy, which is
enhanced by providing the means to ensure
informed, thoughtful decisions. While nothing
can wholly resolve the inherent tension between
“building up” and “tearing down,” there are
methods of giving bad news that also impart
respect and concern. For example, the mediator
might say to the employee: “The worth of your
case is not the same as the worth of you.” Even if
hindsight reveals that waiting to be dismissed
would have materially increased the employee’s
prospects of obtaining an award of back pay, the
mediator could also say that quitting may have
made good sense in the circumstances at the time, in light of the stress the worker was under.

Generally speaking, the mediator should seek
non-patronizing ways to stress what each side,
and particularly the employee, has accomplished
(as opposed to botched): for instance, raising good
children as a single mother, bravely adjusting to a
disability, returning to college to get a degree, filing
the complaint that led to the company’s
adopting a sexual harassment policy, and so forth.
Such comments validate the employee and can
help repair damaged self-respect, even if his lawsuit
yields little vindication.

Apologies and Respect

It is well known that an apology serves as a
powerful restorative (the more so if spontaneously
given). Even when bargained for as a means of
smoothing the way to final resolution of a dispute,
a graciously delivered apology can be very meaningful.
Sticking to the truth enhances the likelihood
that the apology will be regarded as sincere.
For instance, a manager in the Human Resources
Department could voice remorse that she had not
contemporaneously explained to the plaintiff why
he failed to receive a promotion. The employee’s
supervisor could admit using poor judgment in
firing the worker in front of his peers. In one case
I mediated, the employer’s representative expressed
regret for the plaintiff’s belief that the
company’s trainer had been biased against him.
Although the representative denied the bias allegation,
he promised to subsidize the plaintiff’s
attendance at a different training program—a
move that underlined his good faith.

In sum, an apology, usually coupled with additional
terms that satisfy the employee’s key interests,
can go a long way toward reinstating his
“emotional wholeness.”

Occasionally, too, somebody on the defense
side will feel the sting of disrespect and require
efforts to defuse this emotion. The employee’s
expressions of pain should not obscure the fact
that other mediation participants may need succor;
after all, businesses and agencies are made up
of flesh-and-blood human beings whom the
employee may have offended. If unassuaged, this
person’s sense of outrage may also present a significant
barrier to settlement, especially when he
holds a high-ranking position. But even if the dispute
could be settled without his approval, the
ethos of mediation demands evenhanded concern
for the feelings of every participant.

Above all, no one should underestimate the
power of an accusation of prejudice to wound its
target. I helped to construct a conversation between
an African-American employee and her boss
after she told him she felt he was showing favoritism to a newly hired white employee and had
no choice but to think that race was a motivating
factor because she was the only person of color in
the office. He was deeply stung by the racism
charge. He explained that he was paying the other
employee more attention because she was having
some problems at work. The complainant said she
now understood and begged his pardon for her
earlier suspicions. Her boss felt very relieved at the
reinstatement of his self-image as a decent, fairminded
manager. He then proposed, and she
accepted, guidelines to govern their future relationship.
The employee’s retraction of her accusation
and her subsequent apology, with the boss’s
explanation sandwiched between them, plainly
allowed for their reconciliation.

Corporate Remedial Efforts

Sadly, the likelihood of such one-on-one reparations
fades as disputes turn into lawsuits. Yet
certain provisions that appear quite commonly in
settlements of claims by dismissed employees
respond both to their need for respect and to the
imperative of finding a different job. One such term is “retroactive resignation.” It permits a fired
worker to be recorded on the company’s books as
having departed voluntarily. This type of provision
can ease the blow of being discharged. So, too, can
a letter of reference stressing the employee’s
strong points, where there is something good to
be said. (This would require a company whose
policy is to confirm a worker’s prior employment
without commenting on his performance to make
an exception to that policy.) Finally, even if the
employee is still on the job, removing disciplinary
notations (giving “clean paper”) can satisfy pragmatic
as well as dignity interests. The most effective
efforts of this type are custom-made for the
case at hand. I culled the following examples from
matters I have handled.

To resolve a disability discrimination complaint,
a college sweetened its monetary
offer to the plaintiff, who had breast cancer,
with the promise to sponsor a yearly “run
for the cure” in her name. This proposal
prompted the plaintiff to burst into tears—
and immediately accept the offer.

To settle an age discrimination claim, a very proud elderly man, humiliated by his termination,
bargained for several stipulations
designed to enhance his self-esteem: resignation
in lieu of dismissal, clean paper, a
memo to his former colleagues announcing
his retirement as of the date that he was
fired, and—invented for him solely—a
“retiree’s identity card,” which would allow
him to access the premises in order to visit
his former mates.

To settle a racial discrimination in hiring
case, a law firm agreed to the attorney-plaintiff’s
demand that it write a check to the
NAACP made out in the name of the senior
partner.

In consideration for the withdrawal of a sex
discrimination charge, the army agreed to
provide the complainant with a commendation
presented by a general who highly valued
her contributions. The military’s singular setting
enabled her to negotiate that rarest of
prizes, an expression of respect that she could
frame and hang on the wall for all to see.

Regrettably, the formal settlement document
often contains provisions that, singly or in tandem,
subvert the mutual respect that the mediator has
gone out of her way to create. This result occurs
because the formal paperwork is generally prepared
by defense counsel, who invariably includes
a no-rehire stipulation, as well as non-disparagement
and confidentiality clauses. Although the
company has good reasons for insisting on these
protections, it often automatically rejects requests
by the plaintiff’s attorney to make them mutual—
and its reasons for doing so are less compelling.
Fortunately, the mediator can offer specific recommendations
to deal with boilerplate imbalances
that injure a party’s sense of dignity. For example,
she might advise adopting language stating that
the firm is responsible only for the acts of a few
named individuals, and solely during their tenure
at the firm. (This limitation avoids the potential
for broad liability in the event of a slipup by any
one of the company’s many agents.)

By making herself available to assist with such
last-minute issues, the mediator can help ensure
that the mediation’s redemptive powers outlast
the mediation itself.